Deary v. City of Gloucester

• Court: Court of Appeals for the First Circuit
• Decided: November 17, 1993
• Docket: 92-1703
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1703
                                WALTER DEARY, ET AL.,
                                Plaintiffs, Appellees,

                                          v.

                             CITY OF GLOUCESTER, ET AL.,
                                Defendants, Appellees,
                                      _________

                                     JOHN BICHAO,
                                Defendant, Appellant.
                                _____________________
        No. 92-1777

                                WALTER DEARY, ET AL.,
                               Plaintiffs, Appellants,

                                          v.

                             CITY OF GLOUCESTER, ET AL.,
                                Defendants, Appellees.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS
                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________
                                 ____________________

                                        Before

                           Boudin and Stahl, Circuit Judges,
                                             ______________
                             and Fuste,* District Judge.
                                         ______________
                                 ____________________

            Leonard  H.  Kesten  with whom  Thomas  M.  Elcock  and  Morrison,
            ___________________             __________________       _________
        Mahoney &  Miller were on  brief for John Bichao,  City of Gloucester,
        _________________
        David A.  Reardon, Howard Maki, John Beaudette,  Harold Reardon, James
        Hubbard and Chief Earland Whortley.
            Edmund M. Pitts with whom  Edmund R. Pitts and  Pitts & Pitts were
            _______________            _______________      _____________
        on brief for Walter Deary.
                                 ____________________
                                  November 17, 1993
                                 ____________________
        _____________________
        *Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge.   This  appeal  arises   from  a
                    FUSTE, District Judge.
                           ______________

          police  misconduct  action  brought under  42  U.S.C.    1983 and

          Massachusetts law.  Defendant John Bichao appeals contending that

          (1) bias on the part of the trial  judge denied him a fair trial;

          (2) evidence regarding a prior disciplinary action against one of

          the witnesses was  incorrectly admitted; and (3)  attorneys' fees

          were  erroneously granted to plaintiffs' attorneys.  We affirm on

          all grounds.

                                          I.
                                          I.

                                      Background
                                      Background
                                      __________

                    Walter  Deary  and  his  brother  Robert  brought  suit

          against  six Gloucester police officers,  the Mayor, the Chief of

          Police, and  the City of  Gloucester, based on an  incident which

          occurred  on  March 29,  1986.1    The  Dearys alleged  that  the

          defendant police officers physically  assaulted them and  engaged

          in  a cover-up  regarding the  incident.   After  the plaintiffs'

          case,  the  court  directed  verdicts  for  each  of  the  police

          officers, except  Officer Bichao.2   The main  issue in  the case

          was an allegation  that Officer Bichao kicked  Walter Deary twice

          in  the  head.    The   jury  awarded  Walter  Deary  $25,000  in
                              
          ____________________

               1The claims  against the city,  the Mayor, and the  Chief of
          Police  were  bifurcated  from   those  against  the   individual
          officers.

               2Plaintiffs  filed a cross-appeal  requesting that if  a new
          trial were granted  to Defendant Bichao,  then this court  should
          also  reverse the directed verdicts granted to defendants Earland
          Whortley,  David  Reardon, Howard  Maki,  John  Beaudette, Harold
          Reardon, and James Hubbard, the other Gloucester police officers.
          Because  we affirm,  we  do  not  reach  plaintiffs'  alternative
          request.

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                                          2

compensatory damages and  $75,000 in punitive damages,  and found

          for Bichao  on the  claims brought  by Robert  Deary.   The court

          granted $112,295 in attorneys' fees and $8,977.50 in costs to the

          plaintiffs' attorneys under 42 U.S.C.   1988.

                                         II.
                                         II.

                                      Discussion
                                      Discussion
                                      __________

          A.  Allegations of Bias of Trial Judge
          A.  Allegations of Bias of Trial Judge
              __________________________________

                    Officer  Bichao requests a new trial, alleging that the

          trial judge  was so biased  towards the plaintiffs as  to deprive

          the defendant of  a fair trial.  Bichao  lists numerous incidents

          during the trial which he contends were indicative of the bias of

          the judge.   These events may be  divided into three types:   (1)

          claims that the  judge made comments indicating  that defendant's

          counsel was  proceeding too slowly;  (2) claims that  the judge's

          questioning  of witnesses reflected  bias and partiality  for the

          plaintiffs;   (3)   allegations    regarding   disputes   between

          defendant's counsel and the judge,  which Bichao claims created a

          prejudicial effect against the defendant.  

                    Bias  and improper  conduct  by a  trial  judge may  be

          grounds for a  new trial if a party is so seriously prejudiced as

          to be deprived  of a  fair trial.   Aggarwal v.  Ponce School  of
                                              _____________________________

          Medicine,  837 F.2d  17, 21-22  (1st Cir.  1988).   However, mere
          ________

          active participation by the  judge does not create prejudice  nor

          deprive  the party  of a  fair trial.   Id.   On appeal,  we must
                                                  ___

          "consider isolated incidents in light of the entire transcript so

          as to 'guard  against magnification on appeal  of instances which

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                                          3

were of  little importance  in their setting'."   Aggarwal  at 22
                                                            ________

          (quoting Glasser v. United States, 315 U.S. 60 (1984)).
                   ________________________

                    Bichao cites  several instances during the  trial where

          Judge  Tauro encouraged defense  counsel to  advance the  pace of

          questioning, or  was  unsatisfied with  counsel's utilization  of

          time.   The trial  judge has discretion  to maintain the  pace of

          trial,  and indeed "has the responsibility to oversee the conduct

          of  a trial so  that it moves expeditiously".   Desjardins v. Van
                                                          _________________

          Buren  Community Hosp.,  969  F.2d  1280,  1281 (1st  Cir.  1992)
          ______________________

          (noting that requests by the judge that counsel not be repetitive

          are  "routine").  Therefore, encouraging counsel to move forward,

          forbidding  counsel  from  eliciting  duplicative  testimony,  or

          halting  what the  court perceived  to be  a waste  of time,  was

          firmly within the discretion of the trial judge.

                    Next,  Bichao alleges  that the  trial  judge exhibited

          bias  towards the  plaintiffs  by  interjecting questions  during

          defense  counsel's   direct  and  cross-examination   of  several

          witnesses,  including  Bichao   himself.    The  court   has  the

          prerogative to interrogate witnesses, and the duty to do so where

          necessary to  clarify testimony, but  the judge must  maintain an

          air of impartiality.   United States v. Paz Uribe,  891 F.2d 396,
                                 __________________________

          400  (1st Cir. 1989), cert. denied,  495 U.S. 951 (1990).  "Trial
                                _____ ______

          judges are  constantly making judgments  about . . . the  need to

          clarify witness answers, and similar matters of trial management.

          In this realm, the widest possible latitude is given to the judge

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on the scene."   Rodr guez v. Banco  Cent. Corp., 990 F.2d  7, 13
                           _______________________________

          (1st Cir. 1993).

                    Bichao  argues  that  the judge's  questioning  of  the

          plaintiff's  medical   expert,  Dr.  Starr,   undermined  defense

          counsel's credibility, and reflected bias by the judge.  A review

          of the transcript reveals  that the judge's questions  were meant

          to   clarify  the  testimony  of  the  witness.    During  cross-

          examination, Dr. Starr had discussed  a number of documents which

          the jury  did not have  in front of them.   The court  asked some

          questions  in order  to elucidate  which  document the  questions

          referred  to,  and  which  section  of  the  report  counsel  was

          discussing.  These  questions were clearly within  the discretion

          of the trial court.  

                    Bichao  also contends that the court was overzealous in

          its  questioning of  Officers Maki  and  Beaudette during  direct

          examination, and as a result destroyed the credibility of the two

          witnesses.   Officer  Maki  was  the person  who  was closest  in

          physical proximity  to Walter  Deary  when the  alleged kicks  by

          Bichao were administered.   The judge questioned him  in order to

          clarify Maki's statement about his lack of memory of the kicking.

          This issue  was central  to the  case, and  the judge  was acting

          within his discretion to ensure that Maki's  testimony was clear.

          Similarly,  the  court's  questioning of  Officer  Beaudette  was

          unbiased and aimed at illuminating his testimony.

                    Bichao  claims that when he was being cross-examined by

          plaintiff's counsel,  the judge  made uncivil  remarks and  asked

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                                          5

hostile questions of him.   A close examination of the transcript

          reveals that  the judge  occasionally instructed  the witness  to

          answer  the  questions which  were  presented to  him,  and asked

          questions  to elucidate Bichao's testimony.  These directions and

          questions did  not rise  to the level  of partiality,  but rather

          were made with the purpose  of obtaining answers to the questions

          posed and clarifying the answers given.     

                    Finally,  Bichao identifies  several  exchanges in  the

          transcript which he claims reflect a certain amount of  animosity

          between the judge  and defense counsel.  Some  of these incidents

          occurred outside of the hearing of the jury, where they could not

          have influenced the  jury decision.  However, Bichao  points to a

          sidebar  conference during which  the judge stated  that he found

          defense counsel's cross-examination  of the medical expert  to be

          "very devious".   At the time, the  judge asked the  jury whether

          they could hear the sidebar  conference and one juror stated that

          he was able to hear  "a little bit".  This episode,  taken in the

          context  of  a   nine-day  trial,  does  not   warrant  appellate

          intervention.   When  the judge  questioned the  jury about  this

          incident, only one of the eight members stated that he could hear

          a  little bit  of  the conference.   It  is  unclear whether  the

          "devious" comment itself  was overheard by that one  juror.  Even

          assuming that the one juror did hear the statement, we find that,

          viewing  the  trial  transcript  as  a   whole,  the  comment  is

          insufficient  to sustain  a finding of  bias on  the part  of the

          trial judge, or prejudicial impact on the trial.       T r i a l

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                                          6

judges  need to maintain strict control over judicial proceedings

          and as  a result it would  be unrealistic to suggest  that trials

          should always be models of harmony.  Although any display  by the

          trial  judge  of unwarranted  irritation or  displeasure directed

          towards counsel ought to  be avoided, friction between the  court

          and  counsel  does not  constitute  pervasive bias.    See Arthur
                                                                 ___ ______

          Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839  (7th Cir.
          ___________________________________

          1989);  Hamm v. Board  of Regents, 708  F.2d 647,  650 (11th Cir.
                  _________________________

          1983).

                    Bichao contends that the judge  failed to give the jury

          general  or specific curative instructions regarding any of these

          incidents.  But defendant failed to request any specific curative

          instructions  during the course  of the trial.   Furthermore, the

          jury charge instructed the jurors that they were the "sole judges

          of the weight  and effect of  all of the  evidence" and that  the

          evidence in the case  did not include statements of the  judge or

          counsel.  The defendant was not prejudiced by any conduct of  the

          trial judge, and a new trial is not warranted.

          B.  Evidence of Disciplinary Action
          B.  Evidence of Disciplinary Action
              _______________________________

                    During the  cross-examination of  Officer Reardon,  who

          was the  commander on duty on  the night of the  alleged assault,

          the plaintiffs'  attorney questioned Reardon about the reputation

          for truthfulness of Officer Maki.  When Reardon responded that he

          had  never  known Maki  to be  untruthful, counsel  asked whether

          Reardon was  aware of an  incident in which Maki  was disciplined

          after he was untruthful when  filing an overtime report.  Reardon

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                                          7

denied knowledge of  the event.  Plaintiffs'  counsel then called

          Officer  Maki  back  to  the  stand  for  rebuttal testimony  and

          questioned him  about the  incident.  Maki  admitted that  it had

          happened, and  documents regarding  the event  were then  allowed

          into evidence.   Maki  explained his version  of the  incident on

          cross-examination  by  defense  counsel.    Bichao  contends that

          allowing evidence  of this  event was erroneous  for a  number of

          reasons.  

                    First, Bichao argues  that it was improper  to question

          Reardon about his  opinion of Maki's reputation  for truthfulness

          because  Maki's character  had not  been  put into  issue by  the

          defense.  Under  Fed.  R.  Evid. 608,  evidence  of  the truthful

          character of  a  witness is  only admissible  after the  witness'

          character  has been  attacked,  but  there  is  no  corresponding

          limitation  on introducing evidence about the untruthfulness of a

          witness.3  Officer  Maki was the officer who  was located closest
                              
          ____________________

               3Federal Rule of Evidence 608 provides:  

                    (a)  The credibility  of  a  witness  may  be
                    attacked or supported by evidence in the form
                    of  opinion  or  reputation,  but subject  to
                    these limitations: (1) the evidence may refer
                    only   to  character   for  truthfulness   or
                    untruthfulness, and (2)  evidence of truthful
                    character  is   admissible  only   after  the
                    character of the witness for truthfulness has
                    been  attacked   by  opinion   or  reputation
                    evidence or otherwise.  

                    (b) Specific  instances of  the conduct  of a
                    witness, for  the  purpose  of  attacking  or
                    supporting  the  witness'  credibility, other
                    than conviction  of crime as provided in rule
                    609, may not be proved by extrinsic evidence.
                    They may,  however, in the discretion  of the

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                                          8

to Officer Bichao  when the alleged kicks to  Walter Deary's head

          took place.   His testimony about  the arrest was crucial  to the

          trial.  By testifying to the events  of the night in question, he

          put his  credibility  into issue.   Questions  to his  supervisor

          regarding the supervisor's opinion of Officer Maki's truthfulness

          were clearly proper.  

                    Bichao  also contends  that the disciplinary  event was

          too  remote  in  time to  allow  cross-examination  regarding the

          suspension.   When a witness has testified as to the character of

          another  witness, Fed.  R.  Evid.  608(b)  allows  inquiry  about

          specific  instances of conduct concerning the truthfulness of the

          principal witness.  Although the time which has elapsed since the

          prior  bad act  is a  consideration for  the judge  to take  into

          account  when  determining   whether  to  admit   such  character

          evidence, close proximity  in time is not required  under Fed. R.

          Evid. 608(b).  United States v. McClintic, 570 F.2d 685 (8th Cir.
                         __________________________

          1978).  The  incident involving Maki occurred ten  years prior to

          the trial.   The discipline  resulted from the fact  that Officer

          Maki was untruthful in filing an overtime report.   It was within

          the discretion of the trial judge to allow plaintiffs' counsel to

____________________

                    court,  if   probative  of   truthfulness  or
                    untruthfulness,  be inquired  into on  cross-
                    examination of the witness (1) concerning the
                    witness'   character   for   truthfulness  or
                    untruthfulness,   or   (2)   concerning   the
                    character for truthfulness  or untruthfulness
                    of another witness as to which  character the
                    witness being cross-examined has testified.  

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                                          9

question Officer Reardon about his knowledge of this event, since

          the incident was relevant to Officer Maki's credibility.

                    Next,  Bichao argues that the admission of the rebuttal

          testimony of  Maki and the  documents regarding the event  was an

          error  because  each  constituted  extrinsic  evidence   used  to

          controvert Officer  Reardon's denial of  knowledge regarding  the

          disciplinary  incident, in  violation of  Fed.  R. Evid.  608(b).

          While  we agree  that  the  rebuttal testimony  of  Maki and  the

          documents  should not have been admitted, we find the error to be

          harmless for the reasons enumerated below.

                    Fed.  R.  Evid.  608  prohibits   the  introduction  of

          extrinsic evidence to  prove specific instances of the conduct of

          a witness for the purpose of attacking or supporting the witness'

          credibility.   Therefore, although  a witness  can be  questioned

          about particular events, once the witness  has denied or admitted

          knowledge of  the occurrence  on cross-examination,  the examiner

          must accept the answer given by the witness.  U.S. v. Tejada, 886
                                                        ______________

          F.2d  483,  488 (1st  Cir.  1989).   The  purpose of  the  ban on

          extrinsic evidence is "to avoid holding mini-trials on irrelevant

          or collateral matters".  United  States v. Beauchamp, 986 F.2d 1,
                                   ___________________________

          3 n.1 (1st Cir. 1993).   Here, plaintiffs' recall of Officer Maki

          on rebuttal was an unnecessary foray, resulting in a waste of the

          court's time.   Officer Reardon stated on  cross-examination that

          he had no knowledge of the  disciplinary action involving Officer

          Maki.   Questioning about the  event should have been  stopped at

          that juncture.  Under Fed. R. Evid. 608(b), plaintiffs could have

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questioned  Maki  about  the disciplinary  suspension  during his

          original  testimony, since it  was probative of  Maki's character

          for truthfulness  or untruthfulness.   However,  such questioning

          would not  have involved the  time expended in recalling  Maki to

          the  stand, and  therefore the  original  admissibility does  not

          render  the  rebuttal  questioning  acceptable.    The  documents

          regarding  the  disciplinary  event  provided  further  extrinsic

          evidence  of the suspension.   As such, they  would not even have

          been  admissible during Maki's original testimony, and should not

          have been allowed during rebuttal.

                    Although Maki's  rebuttal testimony  and the  documents

          regarding the suspension should not have been admitted under Fed.

          R.  Evid.  608,  we  find  that the  error  was  harmless.    "In

          determining whether  or not the  error was harmless,  a reviewing

          court must assess the record as a whole to determine the probable

          impact of the improper evidence upon the  jury.  United States v.
                                                           ________________

          Mateos-Sanchez, 864 F.2d 232, 237  (1st Cir. 1988) (citing United
          ______________                                             ______

          States  v.  Currier,  821 F.2d  52,  56  (1st  Cir.  1987).    In
          ___________________

          determining    whether   evidence    erroneously   admitted    in

          contravention of  Fed. R. Evid.  608 was harmful, this  court has

          examined such factors as whether the admission allowed completely

          new evidence before the jury,  and whether the disputed  evidence

          was likely to arouse undue passion or prejudice to the jury.  Id.
                                                                        __

          In  this case, during  the cross-examination of  Officer Reardon,

          plaintiffs' counsel raised  the possibility in front of  the jury

          that Officer Maki  may have been involved  in an incident  on the

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                                          11

police   force  where  his  truthfulness  was  questioned.    The

          information about the event, while probative of untruthfulness of

          one of  the witnesses, was not likely  to unduly inflame the jury

          against  the defense.   Furthermore, but for  counsel's omission,

          the disciplinary  action would have been brought out when Officer

          Maki was initially testifying in  the case.  In addition, Officer

          Maki had  an  opportunity  to  explain  the  incident  on  cross-

          examination during rebuttal.  The  error is insufficient to merit

          reversal. 

          C.  Attorneys' fees
          C.  Attorneys' fees
              _______________

                    Finally, appellant  challenges the award  of attorneys'

          fees to  plaintiffs' attorneys  granted under  42 U.S.C.    1988.

          Bichao claims that the records  submitted by the lawyers were not

          contemporaneous and that the billing rate requested was inflated,

          and seeks a reduction  of the fee award to reflect  the fact that

          only  one of  the  plaintiffs  prevailed on  one  of the  claims.

          District courts  have discretion  in awarding  fees and  costs in

          civil rights  cases, but  must carry out  more than  a conclusory

          examination of  the hours  and rates  requested.   Grendel's Den,
                                                             ______________

          Inc. v.  Larkin, 749 F.2d  945, 950 (1st  Cir. 1984).   Normally,
          _______________

          appellate  courts should "defer  to any thoughtful  rationale and

          decision developed  by a  trial court  and . . . avoid  extensive

          second guessing."  Id.
                             __

                    In order to recover fees, attorneys  must submit a full

          and  precise  accounting   of  their  time,  including   specific

          information about number  of hours, dates, and the  nature of the

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                                          12

work performed.   Calhoun v. Acme Cleveland Corp.,  801 F.2d 558,
                            _______________________________

          560 (1st  Cir. 1986).   If such  documentation is  not submitted,

          fees should be reduced or even denied altogether.  Grendel's Den,
                                                             _____________

          749  F.2d at  952.   Here, Judge  Tauro noted that  the attorneys

          submitted  all of  this information,  and found that  the records

          were "essentially contemporaneous and . . . reliable".   Deary v.
                                                                   ________

          Gloucester,  789 F.Supp.  61, 64  (D.Mass  1992).   The attorneys
          __________

          submitted  affidavits,  as   well  as  the  actual   time  slips.

          Following the  admonition in  Grendel's Den,  the district  court
                                        _____________

          deducted hours  from the total  requested where the  records were

          not sufficiently precise or were not in chronological  order, and

          where the  time slips  failed to  correspond with the  attorney's

          affidavit.  The court denied seventy-eight hours out of the 699.4

          hours requested.

                    The district court  must also make a finding  as to the

          prevailing   market  rate,  based  on  evidence  other  than  the

          attorneys' affidavits.  Bordanaro v.  McLeod, 871 F.2d 1151, 1168
                                  ____________________

          (1st Cir. 1989), cert.  denied, 493 U.S. 820  (1989).  The  judge
                           _____________

          here  noted that counsel  submitted affidavits from  other Boston

          attorneys regarding fees in similar cases, as well as information

          about  billing  rates for  Massachusetts  law firms.    The court

          examined this information,  as well as the  attorneys' experience

          levels  in  assessing  the  correct  hourly  billing  rate.    In

          addition,  the  court  awarded  lower  hourly  rates  than  those

          requested for pretrial  work performed by counsel.   Finally, the

          court detailed its reasoning for refusing a reduction in fees due

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                                          13

to  the fact  that  only  one of  the  plaintiffs was  successful

          against  one defendant and for refusing  a request by plaintiffs'

          counsel for a risk factor enhancement of  fees.  We find that the

          district  court  more  than  adequately  analyzed  the  issue  of

          attorneys' fees,  and explained its  reasoning for the  amount of

          fees granted.  

                                         III.
                                         III.

                                      Conclusion
                                      Conclusion
                                      __________

                    In sum, we affirm the holding below.  The judge did not

          display  actionable bias  against the  defendant.   Although  the

          evidence regarding  Officer  Maki's  suspension  was  incorrectly

          admitted  under Fed. R. Evid.  608 through the rebuttal testimony

          of  Officer Maki,  the error  was harmless.   The  district court

          appropriately detailed its  reasoning in granting  the attorneys'

          fees and costs,  and the award will  not be disturbed  on appeal.

          Affirmed.
          Affirmed.
          _________

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